Constitution, originalism and judicial activism – Sutherland Soapbox, 9/30/14

We_The_PeopleThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

A couple weeks ago, Utah and the country celebrated Constitution Day. September 17 was designated to commemorate the signing of the Constitution by the delegates to the Philadelphia Convention in 1787.

The day is well chosen because the genius of a written constitution is as much in the fact that it’s written as in what it says. A government constrained by an accessible set of guidelines stands a real chance of actually being limited. The fact of its being written allows conscientious citizens and officers of government to return to the document to ensure that they are keeping faith with their foundational charter. It allows critics a standard by which to measure proposed actions and policies. If the Constitution is taken seriously it allows for what John Adams called, in the Massachusetts Constitution of 1780, “a government of laws and not of men.” This way of interpreting the Constitution is widely known as “originalism,” and is the view supported by conservative Supreme Court justices such as Antonin Scalia and Clarence Thomas.

The alternative is to allow a powerful individual or group of people to govern with no restraint but the bounds of their own wills. Unfortunately, this can occur even with a written constitution if the terms are treated not as expressions of objective standards that can be discerned from the original meaning of the words, but as empty vessels for government actors to pour their own preferred meanings into. This view is known as the “living Constitution,” which is often tied to the practice of judicial activism. Many view the Supreme Court’s left-leaning judges in this light.

When judges engage in judicial activism, they are essentially creating new law and altering the meaning of the Constitution. This is not the proper role for judges. If a change seems to be needed, the Constitution itself provides the means for making it — not by creative interpretation but by a formal amendment process, difficult enough to require deliberation and consensus but not so difficult as to create undue barriers to needed adjustment.

The even greater genius of the United States’ written constitution is that it is more concerned with structural matters than in asserting nebulous ideals for government officials to run with. The U.S. Constitution is dominated not by policy prohibitions but by structures for decision-making. Nearly the entire 1787 document lays out the responsibilities of the branches of government including crucial limitations on their powers. The Constitution does tell us how we can make decisions that affect our lives, not what all the right decisions will be. Continue reading

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Strong family culture and policy help drive Utah’s dynamic economy

Family_playing_a_board_gameUtah has heard a lot of praise lately for its economic performance, and rightly so. Utah has the nation’s 2nd lowest unemployment rate (3.6 percent), 2nd highest rate of job growth (3.5 percent or 44,700 new jobs), 3rd highest household income ($59,770), and 3rd best ratio of income inequality.

This is likely due to several factors such as Utah’s cultural work ethic – our motto is “Industry,” after all – and good economic policies enacted by Governor Gary Herbert and the Utah Legislature in the years during and after the so-called “Great Recession.” But based on demographic reports and recently published research from the National Bureau of Economic Research, it is also likely due, in no small part, to Utah’s strong family culture.

In addition to Utah’s consistently high economic rankings, the state also ranks at or near the top in most (but not all) measures of family strength and creation. For example, based on the most recent data from the Census Bureau, Utah has the nation’s largest median family size (3.66 people), youngest age at first marriage (25.9 years for men, 24 years for women), highest portion of households headed by married couples (61.4 percent), highest portion of married-couple households with children (31.5 percent), and highest fertility rate (72 per 1,000 women age 15-50).

Of course, correlation is not causation, so what connects these strong family measures to Utah’s solid economic performance? One explanation is the relative youth of the state’s population and how that drives job creation through the creation of the new businesses. Continue reading

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Why a distilled-spirits lobbyist agrees with us on alcohol laws — Sutherland Soapbox, 9/23/14

Shot_glass_with_Fishermans_friendThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Utah and its elected officials are often lampooned for the alcohol/liquor laws and regulations of the state. The laws are usually portrayed as draconian, backwards and unnecessary. As most of you know, Sutherland Institute believes strong regulation of alcohol is a necessary component of a free and thriving civil society. Because of the unique nature of alcohol, its cost and availability should be much more regulated than soda or milk.

So last week, at the Utah Legislative Alcohol Policy Summit, it was very interesting for me to learn we had some very staunch allies in some unexpected places. I listened to a session headed by Victoria McDowell, CEO of the Presidents’ Forum of the Distilled Spirits Industry, which is an alcohol lobbying group that represents about 55 percent of all distilled spirits in the United States. You might know distilled spirits best as vodka, tequila, brandy, whisky and rum.

Throughout her presentation, McDowell described how her group is in favor of strong regulations and opposed to privatization. What could she be thinking? Everyone knows commodities and consumers do best with little to no regulations, right? Yes, we almost always agree with that sentiment. But alcohol is a very unique commodity. McDowell shared the experiences of Washington state, which privatized its alcohol sales in 2012 and has since experienced a host of problems. Listen as McDowell describes some of what has happened in Washington.

We don’t ever want to see another Washington state happen in another [alcohol] control state. Some very large retailers came in — Costco. Costco spent over $20 million to — it’s an initiative state so they got their initiative passed, and consumers were promised greater access, lower cost.

In fact, prices went up. More Washington state residents are going into Idaho or Oregon to buy their alcohol. The mom-and-pop stores, the smaller stores, are slowly dying out because they can’t compete with Costco, with the really big box retailers.

We’ve all probably read in the press about thefts — you know, distilled spirits being stolen by kids out of the grocery stores — because the grocery stores weren’t really prepared and equipped to sell distilled spirits — you know, spirits, I’m always saying, this is not milk and chips that we’re talking about.

Overall, when you see those promises that the states are going to get more money, so far, it hasn’t panned out. In fact, a couple of states who had privatized years ago [have] gone back to control because they never realized all the money they thought they were going to get.

Continue reading

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Hobby Lobby horrors? Not exactly

GavelLegal writing can be dense and overly technical. Perhaps that’s why there persists some confusion about the effect of the Hobby Lobby decision issued by the U.S. Supreme Court. It did not help that the dissent in the case included some irresponsible charges about the majority decision. Indeed, the dissent’s worry that the decision would have a broad effect seems to have captured some adherents against all reason.

As an example, after the decision was issued a reporter asked if we could expect to see employers stop covering contraceptives in their employee health benefits. I tried to explain that even a cursory look at the facts and reasoning of the decision would make clear that it could only apply to a very small set of employers—they would have to be running a closely held corporation (such as a family-owned business), would have had to have a sincere religious objection to extending the coverage (and an employer that had been covering these for years and only now decides to object would have a hard time demonstrating a sincere objection). Plus, the case involved only objections to a small number of drugs that could result in an abortion.

This confusion appears to be at the root of some of the comments on the news that a federal judge in Utah had ruled that the federal government cannot compel testimony where doing so could violate the religious beliefs of a person.   Continue reading

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State school board selection: The ‘partisan elections are unconstitutional’ argument

800px-University_at_Buffalo_voting_boothAfter federal Judge Clark Waddoups’s recent ruling that Utah’s current state board election system is unconstitutional, a new argument from advocates of nonpartisan state school board elections has begun to make the rounds: that partisan state school board elections are barred by the Utah Constitution. While this argument represents a novel reading of the state Constitution, and certainly provides something new for talking heads to discuss, it has not been accompanied by much fact or substantive reasoning to back it up.

The constitutional provision in question (Article X, Section 8) reads: “No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state education systems.” In prosecuting their argument, the nonpartisan election advocates have simply quoted or cited this provision and moved on without further explanation, evidently assuming this citation closes all possibility of debate to any reasonable person. I mean, what part of “no partisan test” don’t you understand, right?

But for the common good and for the sake of free society, deeper thought and more substantive consideration than that is required for determining such an important policy and constitutional issue.

The plain language of Article X, Section 8 makes clear that it only applies to three areas of public education: employment, admission, or attendance. Obviously, state school board members are not seeking to be admitted to or attend public schools, so the only constitutional leg left for this argument to stand on is the area of employment.

So the relevant question becomes: Are we electing school employees when we vote for our state school board representative?

The common sense answer is “no.” Voters don’t go to the ballot box to choose their favorite education bureaucrat. Rather, they are voting for a person who is willing to take time and effort away from work and family to help administer the public school system — not as a source of employment, but as a public service to their community and state. Of course, we also recognize the financial difficulties that this service would create if it were left purely as a charitable donation of time, not to mention the implications for free society if only the wealthy were able to serve. Therefore, society has decided as a matter of policy to provide some basic financial reimbursement to school board members to help more people be able to serve. But the presence of modest financial reimbursement does not lead to the conclusion that state school board members are public school employees. Continue reading

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Tonight: Watch debate on land use

We invite you to watch this debate tonight on a topic vital to our state: the potential transfer of public lands from federal to state control.

If you live in the Cedar City area, feel free to attend in person. The debate starts at 6 p.m. at SUU’s Sterling R. Church Auditorium at Sharwan Smith Student Center.

Otherwise, click here for the live feed. See the flier below for more details.
alc lands debate flier


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Is Healthy Utah a good idea? More information changes people’s minds – Sutherland Soapbox, 9/16/14

Man-inside-note-headThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Sutherland Institute commissioned a poll by Magellan Strategies that was released yesterday about Utah voters’ support for Medicaid expansion in its various forms, including Governor Gary Herbert’s preferred “Healthy Utah” form of expansion. The question we aimed to address was this: “What do Utah voters think about Medicaid expansion when they are informed about the issue in a way that is comparable to Utah legislators?”

Utah voters’ answer was to reluctantly say “Utah should probably do nothing on expansion for now, and should instead start looking for better ideas.” But before I dig into that, I think it’s important to understand why we thought to commission a poll at all.

Multiple polls on Medicaid expansion in Utah have been published and reported on in the press. These polls reported that somewhere between 70 and 88 percent of Utah voters support either traditional Medicaid expansion, or the Healthy Utah version – overwhelming support by any reasonable standard.

But think for a minute about whether those numbers make any sense. If these numbers are accurate, it means that a higher portion of Utah voters support expanding Medicaid than supported Utah’s marriage amendment in 2004. Now, does anyone really believe that’s true? Yeah, neither did we.

Rather than accepting hard-to-believe polling results at face value, we thought it better to commission a poll that gave more complete information and context to Utah voters about the costs, enrollment, and uncertainties of Medicaid expansion in Utah.

What happened is that voters said that none of the Medicaid expansion options merit majority support. In fact, the only one that received positive net support was the “do not expand Medicaid right now” proposal, with 45 percent in favor and 26 percent opposed. For comparison, Healthy Utah got 32 percent in favor and 40 percent opposed, traditional Medicaid expansion got 21 percent in favor and 49 percent opposed, and partial Medicaid expansion got 19 percent in favor and 48 percent opposed. Thirty percent of Utah voters on average said they were unsure or didn’t know whether they supported or opposed each proposal. Continue reading

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Trouble in the West

Montana's Rocky Mountain Front is seen at the right in this aerial photo. (Photo credit: Bobak Ha'Eri)

Montana’s Rocky Mountain Front is seen at the right in this aerial photo. (Photo credit: Bobak Ha’Eri)

The “green-über-alles” crowd has Utah and our neighbors in its sights. For instance, take this editorial from a Montana newspaper (republished by Utah.Politico.Hub), “Big Trouble in Big Sky Country.”

This “big trouble” – referring to tactics used by radical environmentalists who demonize multiple use of our beautiful Western lands – doesn’t just apply to Montana, but to all the states in the West. From the editorial:

When public support for the [1964] Wilderness Act tanked, enter the manipulation by environmentalists. Greens both inside and outside government have turned to an onslaught of other means to control and/or remove land uses they dislike — through appeals, litigation, administrative fiat, bureaucratic delay, endangered species, conservation easements, even national monument designation under the Antiquities Act.

The strategy is to block land uses in hopes the land users go away.

Click here to read the rest of the editorial at Utah.Politico.Hub.

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New poll shows Utahns reluctant about Medicaid expansion proposals

Study tableThe results of a new survey conducted by Magellan Strategies seem to contradict other recent polls on the topic of Medicaid expansion in Utah.

In the Magellan poll, conducted last week, no more than 45 percent of poll respondents favored any of four proposals once those proposals had been explained in detail.

Sutherland commissioned the poll because we wanted to see what Utah voters thought about Medicaid expansion when they were given more complete information about the costs, enrollment, and uncertainties of Medicaid expansion than provided in the previous polls.

In essence, the poll tackled the question: “When voters are informed about the options for Medicaid expansion on a level comparable to Utah legislators, what do they think the state should do?”

The voters’ reluctant answer was this: “They should probably do nothing for now and look for something better than the currently available options.”

In fact, the only proposal that had positive support was the “do not expand Medicaid right now” proposal, which was favored by 45 percent of poll respondents, compared with 26 percent opposed.

The other three proposals in the poll had more opposition than support: Traditional Medicaid expansion had 21 percent in favor, 49 percent opposed; partial Medicaid expansion had 19 percent in favor, 48 percent opposed; and the Healthy Utah plan had 32 percent in favor, 40 percent opposed.

The survey found that a sizable percentage of Utah voters are uncertain about what Utah policymakers should do, when they are given all of the information. On average, 30 percent of respondents were unsure if they favored or opposed the proposals when they were informed and asked about them in a stand-alone format.

After hearing all of the proposals described in detail, respondents were then asked to choose which plan they thought was best. The “do not expand Medicaid right now” proposal won a plurality of support with 31 percent, followed by “unsure or don’t know” at 20 percent, Healthy Utah at 17 percent, traditional Medicaid expansion at 15 percent, partial Medicaid expansion at 10 percent, and “don’t like any of the proposals” at 7 percent.

Put together, this means that only 42 percent of those polled said that some form of Medicaid expansion was the best option, compared with 58 percent who were either unsure or preferred something other than the proposals that would immediately expand Medicaid.

The poll was a landline and cell phone survey of 500 registered voters in Utah on Sept. 8 and 9. It has a margin of error of +/- 4.38 percent at a confidence level of 95 percent.

Click here to read the survey done by Magellan and see details about the questions and methodology used.

For crosstabs detailing information about subgroups within the survey population, click here.

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‘A secular society is not our judge’

couple_walkingElder Russell M. Nelson of the LDS Church minced no words about the true nature of marriage last month during a commencement speech at BYU:

Social and political pressures to change marriage laws are resulting in practices contrary to God’s will regarding the eternal nature and purposes of marriage, he said.

“We cannot yield,” he said. “History is not our judge. A secular society is not our judge. God is our judge! For each of us, judgment day will be held in God’s own way and time. … Man simply cannot make moral what God has declared to be immoral. Sin, even if legalized by man, is still sin in the eyes of God. …

“Marriage was not created by human judges or legislators. It was not created by think tanks or by popular votes or by oft-quoted bloggers or pundits. It was not created by lobbyists. Marriage was created by God.”

Elder Nelson also pointed out, “It is crucial to note that full fidelity to [marriage] covenants forbids pornography, lust or abuse in any form.”

Listen to the full speech here.


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The wrong Rx

A new study by State Budget Solutions shows our friends and neighbors in Utah would be devastated with the loss of 14,000-plus jobs in the state because of Medicaid expansion. We must do better!

You can read the study here.



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Charity care is crucial to Utah’s health – Sutherland Soapbox, 9/9/14

MystethoscopeThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Health care and health care policy have become daily news topics. You may have noticed Governor Gary Herbert promoting his Healthy Utah plan. Although this proposal is touted as an alternative to Medicaid expansion, it would require the approval of the president’s Secretary of Health and Human Services. So in other words, a state government initiative, funded by the federal government – as long as the money is there – will be run, and effectively guaranteed, by state government. Considering the federal government is already in debt up to its neck, we think this sounds like a really bad bet.

As a conservative organization, Sutherland Institute does not believe in government-driven health care. We do not believe health care is a right, but rather a personal responsibility, and yet we believe all people have a moral obligation to care for each other. It’s manifestly human – a moral good – to care for our neighbors.

For the past 12 years, Sutherland has argued that authentic charity care creates the right kinds of socioeconomic incentives to build community, heal class divisions, control health care costs and set an example for the rest of the nation. We also assert that the increase in Medicaid can be mitigated through the expansion and improvement of something that already exists: the impressive care currently being provided across our state by charity-care clinics, private-practice physicians and institutions serving the “working poor,” indigent and needy uninsured. Continue reading

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Not so fast: Federal judge says Constitution doesn’t require redefining marriage

We_The_PeoplePerhaps the most powerful argument for same-sex marriage has been that it is “inevitable.” It’s powerful because it contains an implicit threat: If you think there is something unique and uniquely valuable about marriage between a husband and wife — you are on the wrong side of history and your views will soon be treated as unacceptable with the possibility of your livelihood being at risk.

This argument has gotten some fuel lately from a couple dozen federal and state court decisions ruling that the U.S. Constitution requires each state to redefine marriage to include same-sex couples. These courts have reasoned that when the U.S. Supreme Court last summer was silent on whether states could retain their marriage laws it really meant to signal that the states were actually not allowed to define marriage as the union of a husband and wife.

A common rhetorical point made by advocates of redefining marriage is that same-sex marriage is enjoying a streak of unbroken successes in the court.

That contention is no longer available, since Wednesday a federal court in Louisiana handily rejected the argument that redefining marriage is required by the Constitution. Most readers can be excused for not knowing about this development since it’s not getting much high-profile press coverage (as the decision would have if it had gone the other way). Continue reading

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Conservative focus on helping vulnerable is long overdue – Conservatively Speaking, 9/2/14

Senator Mike Lee holds a discussion at Sutherland offices about poverty.

Senator Mike Lee holds a discussion at Sutherland offices about poverty.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

For conservatives, poverty and eroding economic security for middle income families are not simply social problems, but moral problems as well. Beyond the economic and budget struggles poverty creates, we have an “obligation to help the vulnerable,” to borrow from Arthur Brooks at the American Enterprise Institute. And the lack of ability to enter and remain in the middle class diminishes the meaning and value of freedom for society, not to mention inviting greater dangers by suggesting to people that a free society is perhaps not in their best interests.

Because of the social and moral problems presented by poverty and middle-class insecurity, various political and intellectual conservatives have begun proposing new policy approaches to these issues. For instance, the American Enterprise Institute recently published a compilation of work in a booklet called “Poverty in America, and What to Do About It.” Congressman Paul Ryan published a draft report from the House Budget Committee titled “Expanding Opportunity in America.” And our own U.S. Senator Mike Lee just released a booklet titled “An Agenda for Our Time” detailing his approach to what he calls “the opportunity crisis” faced by the poor and middle class in America.

The renewed focus on poverty and middle-class issues on the right is long overdue. While charitable giving and volunteerism are indisputably good things espoused by conservatives, events such as the recession and the weak economic recovery illustrate that they simply are not enough in the face of a weak economy. A consequence of conservatives’ praise of markets and civil society has been to leave welfare policy largely to the political left, which has turned into unending promises for economic salvation, combined with an unending inability to do much for the poor. Continue reading

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Poll: Most Utahns want police to wear body cameras

policecarFollowing the recent violence in Ferguson, Mo., and shootings by police in Utah, the website Utah Policy commissioned a Dan Jones poll on how Utahns feel about related issues. Utah Policy’s report says,

More than 8 out of 10 Utahns think police officers should be required to wear body cameras or other recording devices, but they’re split over whether cops are too quick to use deadly or excessive force.

Utah police agencies are already adding body cameras. In fact, the officer who shot and killed a man Aug. 11 in a 7-Eleven parking lot was wearing one, so that footage is part of the investigation. According to The Salt Lake Tribune, some officers want to wear a body cam enough that they are buying them with their own money.

So apparently the use of “cop cams” appeals to both the public and the police in Utah, though perhaps for varying reasons: documentation that protects the public, and documentation that backs up police actions.

Possible drawbacks to the body cameras include privacy issues and cost to taxpayers. But even the ACLU supports use of the cameras (although with strict privacy rules): “We’re against pervasive government surveillance, but when cameras primarily serve the function of allowing public monitoring of the government instead of the other way around, we generally regard that as a good thing.”

Click here to read about the poll at

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